Liability of agents for construction defects

defectos constructivos

 

The agents are jointly and severally liable for construction defects that are not individualizable or when the concurrence of faults is not proven.

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The 1st Section of the Provincial Court of Huesca issued judgment on 30 March 2020, with No Resolution 53/2020, partially upholding the appeal filed by the Community of owners. He condemned D. Benito, D. Calixto, WORKS AND CONTRACTS FEMORA, S.L., BISAN PATRIMONIAL, S.L. AND CASER INSURANCE, S.A., according to their responsibility for the damages and deficiencies proven after the construction of the houses and storage rooms.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

By the promoter, BISAN PATRIMONIAL, S.L., and the construction company, WORKS AND CONTRACTS FEMORA, S.L., a condominium building was built.

BISAN PATRIMONIAL, S.L., contracted two insurances with CASER, INSURANCE AND REINSURANCE COMPANY, S.A., "All construction risk" and "segmented ten-year". The first included all the works and installations and maintenance, from 14 March 2010 a 14 March 2011. Second, structural damage to the building according to art. 19 READ, and damage to fundamental work, secondary work, fixed installations, own equipment and urbanization elements, demolition and debris costs, with a limit.

The Community of Owners filed a lawsuit, requesting compensation for construction defects, contra BISAL PATRIMONIAL. S.L., WORKS AND CONTRACTS FEMORA, S.L., D. Benito, D. Calixto (architect, project writer and construction manager, respectively) and CASER SEGUROS, S.A.

Primera Instancia

The Court of First Instance No. 1 of Huesca issued sentence on 30 June 2016, dismissing the claim in its entirety due to lack of proof of the defects that the Community of Owners alleged.

Provincial Court

The Community of Owners filed an appeal. The reasons were related according to the alleged construction defects, depending on whether they affected common or proprietary elements.

The Section partially upheld the appeal.

I consider that, having intervened in the construction various agents, and that, although the Law Construction Planning, regulated personal and individualized responsibility, on article 17.3 it was stated that when the cause of the material damage cannot be identified or the concurrence of faults was duly proven without being able to specify the degree of intervention of each agent in the damage produced, responsibility will be jointly and severally demanded. In any case, the promoter will respond in solidarity with the other intervening agents before the possible purchasers of the material damages in the building caused by defects or construction defects. " (STS 2167/2012, of 20 May 2015).

Conclusion

According to him article 17.3 READ,:

“When the cause of the material damage could not be identified or the concurrence of faults was duly proven without being able to specify the degree of intervention of each agent in the damage produced, responsibility will be jointly and severally demanded. In any case, the promoter will be liable jointly and severally with the other intervening agents before the possible purchasers of the material damages in the building caused by defects or construction defects. "

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